Fonds d'emprunt communautaire de la Gaspésie et des Îles v. Canada (National Revenue)

Fonds d'emprunt communautaire de la Gaspésie et des Îles v. Canada (National Revenue) Court (s) Database Federal Court of Appeal Decisions Date 2006-05-04 Neutral citation 2006 FCA 164 File numbers A-356-04 Decision Content Date: 20060504 Docket: A-356-04 Citation: 2006 FCA 164 CORAM: DÉCARY J.A. LÉTOURNEAU J.A. PELLETIER J.A. BETWEEN: LE FONDS D'EMPRUNT COMMUNAUTAIRE DE LA GASPÉSIE ET DES ÎLES Appellant and THE MINISTER OF NATIONAL REVENUE Respondent Hearing held at Montréal, Quebec, on May 3, 2006. Judgment delivered at Montréal, Québec, on May 4, 2006. REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A. CONCURRED IN BY: DÉCARY J.A. PELLETIER J.A. Date: 20060504 Docket: A-356-04 Citation: 2006 FCA 164 CORAM: DÉCARY J.A. LÉTOURNEAU J.A. PELLETIER J.A. BETWEEN: LE FONDS D'EMPRUNT COMMUNAUTAIRE DE LA GASPÉSIE ET DES ÎLES Appellant and THE MINISTER OF NATIONAL REVENUE Respondent REASONS FOR JUDGMENT LÉTOURNEAU J.A. [1] Mr. Justice Tardif (“judge”) of the Tax Court of Canada concluded that the work performed by Mr. Milligan for the appellant during the period in question did not meet the conditions of a genuine contract of employment. He was of the opinion there was no employer-employee relationship between the appellant and Mr. Milligan. [2] The judge came to this conclusion after noting inconsistencies and contradictions in the evidence with respect to the Mr. Milligan’s job description, the number of hours worked, and the relatively higher remuneration reportedly paid to him, compared with the lower amounts paid to other persons for more important tasks. The judge also questioned the remuneration actually paid to Mr. Milligan in comparison with what the appellant claimed to have paid him. He also noted the lack of reliable records on these matters. [3] At paragraphs 14 to 18 and 26 of his decision, the judge concluded that Mr. Milligan’s employment was essentially a sham made up for the benefit of the appellant so as to allow Mr. Milligan to eventually receive Employment Insurance benefits and to allow the appellant to obtain a grant from Emploi-Québec under a job creation program for disabled persons. Because Mr. Milligan’s hearing was impaired, he could qualify for this program, provided the program’s conditions were respected. [4] In this case, the judge was faced with a problem of credibility. As he was required to do, on the basis of the testimony and documentary evidence, the judge made findings of fact free of any palpable and overriding errors. The appellant is asking us to review and set aside these conclusions. Having neither seen nor heard the witnesses, this Court is not inclined to review the judge’s assessment of the credibility of the testimony, nor do we have jurisdiction to do so. [5] For these reasons, I would dismiss the appeal without costs in the circumstances. “Gilles Létourneau” J.A. “I concur.” “Robert Décary J.A.” “I concur.” “J.D. Denis Pelletier J.A.” Certified true translation Michael Palles FEDERAL COURT OF APPEAL SOLICITORS OF RECORD DOCKET: A-356-04 APPEAL FROM A DECISION OF MR. JUSTICE ALAIN TARDIF OF THE TAX COURT OF CANADA DATED JUNE 8, 2004. CITATION: LE FONDS D'EMPRUNT COMMUNAUTAIRE DE LA GASPÉSIE ET DES ÎLES v. THE MINISTER OF NATIONAL REVENUE PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: May 3, 2006 REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A. CONCURRED IN BY: DÉCARY J.A. PELLETIER J.A. DATED: May 4, 2006 APPEARANCES: Sonia Gagnon New Richmond, Quebec FOR THE APPELLANT Alain Gareau FOR THE RESPONDENT SOLICITOR OF RECORD: John H. Sims, Q.C. Deputy Attorney General ofr Canada FOR THE RESPONDENT